THOMPSON V ARCHBISHOP OF LIVERPOOL AND OTHERS Unreported 19th December 2008 Justice McKay
FACTS:-
The Claimant was at a Roman Catholic boarding school between September 1978 and December 1979. He alleged sexual assault by two priests and a music teacher. He alleged negligence and trespass against the person. The Defendants made an application for the case to be heard by way of preliminary issue on limitation, which application was refused by Master Rose. It was agreed by all parties that the issue in this case on limitation would be that of section 33 of the Limitation Act 1980. The Defendants appealed.
HELD:-
Mr Justice McKay considered Sections 11, 14 and 33 of the Limitation Act 1980 and the case of A v Hoare [2008] 1 AC 84 which overturned Stubbings v Webb [1993] AC 498. He also considered the case of KR and Others v Bryn Alyn Community (Holdings) Limited [2003] QB 1441 where the Court of Appeal had said that wherever possible, the court should strain to deal with the matter by way of preliminary hearing.
McKay J said that the fact that the Claimant might have to give his evidence twice on preliminary issue was a powerful factor. One was not just talking about efficiency, money and cost but the human cost of a Claimant being put through his evidence on two occasions instead of one.
The Court of Appeal in Bryn Alyn were envisaging a trial on preliminary issue by reference to pleadings and written witness statements. Neither side in this case thought this would be appropriate for a preliminary issue on trial. It would be very hard to resist an application by the Claimant for medical evidence to be adduced, because of the complicated psychiatric history.
There was also the issue of whether a settlement would be forthcoming after a preliminary issue trial. This was not a straightforward issue. However the preliminary issue matter could not be tried within a day, as asserted by the Defendants, whereas the Claimants said that it would take two days, as opposed to three days for a full trial.
McKay J said that the most important of the circumstances of the case would be the cogency of the Claimant’s case. The more tenuous it appeared to be, the less would be his loss if limitation were applied against him. Secondly the inability or extreme difficulty for the Defendants to put in a defence. Thirdly the most relevant circumstances would be the reasons for the delay and that would depend on the Claimant’s evidence and on psychological evidence.
The preliminary issue would have to be done on evidence. There would be some extra time involved in the case, but the aggregate of the times that would be taken by the two hearings would considerably exceed the time and therefore the cost of dealing with the matter in one go.
This was a review not a rehearing of the Master’s decision. McKay J referred to the excellent judgment of Master Fontaine in J K and P v Archbishop Of Birmingham (1) The Trustees for the Birmingham Archdiocese of the Roman Catholic Church (2) Unreported (2008). This was a case management decision and a discretionary one at that. The Master had considered all the circumstances of the case and was entitled to make a finding that significant costs savings would be unlikely and that evidence at the preliminary hearing would be replicated at trial. The Defendants had failed to demonstrate that the Master was wrong to decide as he did.
FACTS:-
The Claimant was at a Roman Catholic boarding school between September 1978 and December 1979. He alleged sexual assault by two priests and a music teacher. He alleged negligence and trespass against the person. The Defendants made an application for the case to be heard by way of preliminary issue on limitation, which application was refused by Master Rose. It was agreed by all parties that the issue in this case on limitation would be that of section 33 of the Limitation Act 1980. The Defendants appealed.
HELD:-
Mr Justice McKay considered Sections 11, 14 and 33 of the Limitation Act 1980 and the case of A v Hoare [2008] 1 AC 84 which overturned Stubbings v Webb [1993] AC 498. He also considered the case of KR and Others v Bryn Alyn Community (Holdings) Limited [2003] QB 1441 where the Court of Appeal had said that wherever possible, the court should strain to deal with the matter by way of preliminary hearing.
McKay J said that the fact that the Claimant might have to give his evidence twice on preliminary issue was a powerful factor. One was not just talking about efficiency, money and cost but the human cost of a Claimant being put through his evidence on two occasions instead of one.
The Court of Appeal in Bryn Alyn were envisaging a trial on preliminary issue by reference to pleadings and written witness statements. Neither side in this case thought this would be appropriate for a preliminary issue on trial. It would be very hard to resist an application by the Claimant for medical evidence to be adduced, because of the complicated psychiatric history.
There was also the issue of whether a settlement would be forthcoming after a preliminary issue trial. This was not a straightforward issue. However the preliminary issue matter could not be tried within a day, as asserted by the Defendants, whereas the Claimants said that it would take two days, as opposed to three days for a full trial.
McKay J said that the most important of the circumstances of the case would be the cogency of the Claimant’s case. The more tenuous it appeared to be, the less would be his loss if limitation were applied against him. Secondly the inability or extreme difficulty for the Defendants to put in a defence. Thirdly the most relevant circumstances would be the reasons for the delay and that would depend on the Claimant’s evidence and on psychological evidence.
The preliminary issue would have to be done on evidence. There would be some extra time involved in the case, but the aggregate of the times that would be taken by the two hearings would considerably exceed the time and therefore the cost of dealing with the matter in one go.
This was a review not a rehearing of the Master’s decision. McKay J referred to the excellent judgment of Master Fontaine in J K and P v Archbishop Of Birmingham (1) The Trustees for the Birmingham Archdiocese of the Roman Catholic Church (2) Unreported (2008). This was a case management decision and a discretionary one at that. The Master had considered all the circumstances of the case and was entitled to make a finding that significant costs savings would be unlikely and that evidence at the preliminary hearing would be replicated at trial. The Defendants had failed to demonstrate that the Master was wrong to decide as he did.